FINE v. FINE

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Supreme Court, Appellate Division, Second Department, New York.

Hannah FINE, respondent, v. Lawrence FINE, appellant.

Decided: February 21, 2006

THOMAS A. ADAMS, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN, PETER B. SKELOS, and MARK C. DILLON, JJ. Joel M. Defren, New York, N.Y., for appellant. Karina E. Alomar, Glendale, N.Y., for respondent.

In an action to set aside a stipulation of settlement dated June 22, 1999, which was incorporated, but not merged, into the parties' judgment of divorce entered July 21, 1999, the defendant appeals from an order of the Supreme Court, Queens County (Lebowitz, J.), dated March 17, 2005, which granted that branch of the plaintiff's motion which was for an award of an attorney's fee to the extent of awarding the plaintiff an attorney's fee in the sum of $5,000.

ORDERED that the order is reversed, on the law, with costs, and that branch of the motion which was for an award of an attorney's fee is denied.

 On June 22, 1999, the parties entered into a stipulation of settlement of their matrimonial litigation.   The stipulation of settlement was incorporated, but not merged, into the judgment of divorce entered July 21, 1999.   As the unmerged stipulation of settlement survived as a separate contract (see Sacks v. Sacks, 220 A.D.2d 736, 633 N.Y.S.2d 193), the plaintiff commenced the instant action to set it aside on the ground that it was fraudulently induced by the defendant's alleged misrepresentation of his income.   The complaint sought no relief under the judgment of divorce.   The Supreme Court granted that branch of the plaintiff's motion which was for an attorney's fee to the extent of awarding her a fee in the sum of $5,000, pursuant to Domestic Relations Law § 237(b).  The award was in addition to an earlier $3,500 award of an attorney's fee to the plaintiff.   The defendant appeals.   We reverse.

 Domestic Relations Law § 237(b) permits a court to award an attorney's fee “[u]pon any application to annul or modify an order or judgment for alimony ․ or maintenance.”   The Supreme Court's reliance upon Conrad v. Conrad, 64 A.D.2d 751, 406 N.Y.S.2d 636, in awarding the fee here, was misplaced, as Conrad affirmed an award of an attorney's fee where the parties' separation agreement merged into the judgment of divorce, thereby triggering the discretionary provisions of Domestic Relations Law § 237(b).  Here, relief is sought only as to the parties' stipulation of settlement, which did not merge into the judgment.

 A plenary action to vacate a stipulation of settlement on the basis of fraud, is not a matrimonial action (see Matter of Drake v. Drake, 94 A.D.2d 768, 462 N.Y.S.2d 713;  Donnarumma v. Donnarumma, 72 A.D.2d 545, 420 N.Y.S.2d 729;  Riemer v. Riemer, 31 A.D.2d 482, 487, 299 N.Y.S.2d 318, affd. 31 N.Y.2d 881, 340 N.Y.S.2d 185, 292 N.E.2d 320).   Accordingly, the Supreme Court erred in awarding the plaintiff an attorney's fee under Domestic Relations Law § 237(b) (see Sandel v. Sandel, 96 A.D.2d 584, 465 N.Y.S.2d 542;  Winant v. Winant, 83 A.D.2d 849, 442 N.Y.S.2d 13, affd. 55 N.Y.2d 870, 448 N.Y.S.2d 469, 433 N.E.2d 534;  Osetek v. Osetek, 75 A.D.2d 867, 869, 427 N.Y.S.2d 884;  Rubin v. Rubin, 72 A.D.2d 810, 421 N.Y.S.2d 914;  Weseley v. Weseley, 58 A.D.2d 829, 830, 396 N.Y.S.2d 455).

 An attorney's fee may be awarded when a party seeks by a plenary action to enforce a separation agreement (see Stephenson v. Stephenson, 116 A.D.2d 504, 506, 497 N.Y.S.2d 375) or provisions of a judgment of divorce (see Gyory v. Schaffer, 80 A.D.2d 871, 436 N.Y.S.2d 788).   However, the plaintiff, by seeking to set aside the parties' stipulation by a plenary action, was not entitled to an attorney's fee under Domestic Relations Law § 237(b) (see Winant v. Winant, supra;  Rubin v. Rubin, supra ).

The parties' remaining contentions are either without merit or have been rendered academic in light of our determination.

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